Smeaton v. Martin

• Decision Date: 04 April 1883
• Citation: 15 N.W. 403,57 Wis. 364
• Parties: SMEATON AND OTHERS v. MARTIN AND OTHERS.
• Court: Wisconsin Supreme Court

57 Wis. 364

15 N.W. 403

SMEATON AND OTHERS

v.MARTIN AND OTHERS.

Supreme Court of Wisconsin.

Filed April 4, 1883.

Appeal from circuit court, Waukesha county.

June 29, 1882, the plaintiffs, as tenants in common of a farm of 160 acres in the town of Vernon, Waukesha county, obtained a preliminary injunction upon their verified complaint, alleging, in effect, that on June 15, 1882, and subsequently, the defendants, claiming and assuming to act as the supervisors of said town, entered upon said farm without authority, and wrongfully commenced and continued the excavation of a deep ditch thereon, and were thereby drawing the water down upon and flooding the plaintiffs' said lands and injuring their crops, compelling the plaintiffs to bring a multiplicity of suits, and for which there was no adequate remedy at law, and asked that such injunction be made perpetual. The defendants moved to dissolve the injunction upon their verified answer, denying certain allegations of the complaint, and alleging, among other things, in effect--

That three of them were the supervisors of said town of Vernon and the other three of the town of Waukesha, adjoining said town of Vernon on the north, and between which towns was a highway running east and west, and that between said highway and the farm of the plaintiffs was 80 acres of land which had belonged to William Stillwell, but the west three-fourths of which then belonged to James Stewart and the balance to August Lafer, and that the same was low, swamp land, which necessarily required draining to make it available for farming purposes, and which highway run through such low, swamp land and necessarily required to be drained to make it available for the purposes and uses of a highway.

That November 26, 1863, said William Stillwell caused to be dug and opened a ditch running from said highway across his said low, swamp lands in a southerly direction until it came to the north line of the plaintiff's said land, for the purpose of draining his said low, swamp lands, together with said highway. That the natural flow of the water from said highway and said Stillwell's low, swamp land through said ditch was in a southerly direction to the north line of the plaintiff's land, and from thence said water, together with the water that gathered upon and flowed off from said end of the plaintiff's land in a valley that led to a natural stream a quarter of a mile south of the south line of plaintiff's land, except that there was a strip of land about twenty rods wide on the north side of the plaintiff's land two feet higher than Stillwell's land, and the land of the plaintiff's south of it, and through which strip it was necessary to dig a ditch in order to drain Stillwell's land and said highway through said valley to said natural stream. That November 26, 1863, on the application of Stillwell, an injunction was duly found under the statutes, for the opening and digging of a ditch through the lands of the plaintiffs in a southerly direction, according to a map, plans, and specifications thereof duly made and filed; and thereupon, and in 1863, Stillwell dug out and opened said ditch in accordance with said inquisition, map, plan, and specifications, the north end of which connected with the south end of the ditch dug and opened through and across Stillwell's land, whereby Stillwell's low, swamp land and said highway were drained so as to render Stillwell's land available for agricultural purposes, and said highway available for the purposes and uses of travel, and the said drain was kept open and unobstructed from 1863 to 1878 as a water-course, when the plaintiffs placed temporary obstructions in the same near their north line, and which obstructions were from time to time removed by Stillwell and replaced by the plaintiffs, and gradually said drain became filled up with sediment for its whole length, and thereby caused the overflow of said Stillwell's land and said highway until the spring of 1882, when the plaintiffs filled up the drain permanently, and peremptorily refused to allow the same to be opened, and which resulted in submerging Stillwell's land and overflowed said highway, so as to render the same impassable and unfit for the uses and purposes of a road.

That May 16, 1882, the said supervisors of Vernon, after complaint made to them in writing by James Stewart, to the effect that he was a resident land-owner of said town; that the ditch or water-course described had been so obstructed that the natural flow of water along the same was prevented by the plaintiffs, through whose land the same had been laid out and opened, by filling the same with stones, logs, rails, earth, and other substances, in the spring of 1878, in the spring of 1879, in the spring of 1880, in the spring of 1881, and in the spring of 1882, and because thereof great damage and inconvenience had been put upon him and many other citizens of the town, as well as the general public, whereby he felt deeply aggrieved, wherefore he requested the immediate removal of said obstructions, under the provisions of the statute in such case made and provided,--they made an order reciting in effect that, it appearing satisfactorily to them that all the material allegations in said Stewart's complaint were in fact true, and that such filling up and obstructing said ditch had caused, and did then cause, the overflow of the highway on the north side of Stillwell's land to such an extent as to seriously interfere with and impede the travel thereon, it was thereby ordered that said obstructions in said ditch be immediately removed, so as to cause the free and unrestrained flow of the water therein, the same as though said obstruction had not been placed therein, and so as to prevent any future overflow of said highway, or the lands owned and occupied by said Stewart (being the W. 3/4 of the Stillwell 80) or any other person or persons whose lands are overflowed by reason of such obstructions being placed in said ditch; and it was thereby further ordered that the overseer of highways in the road-district where said road was located, and said Stewart, or either of them, their agents or servants, enter upon said lands and remove said obstructions, as hereinbefore directed. That the same was thereupon done in pursuance of such order, the doing of which were the acts complained of.

The allegations of the answer were supported by five affidavits, and said complaint and order. The plaintiffs replied, and denied each and every allegation of the answer constituting a counter-claim, and also presented certain affidavits upon the motion, denying some statements in the answer and explaining others. September 13, 1882, the court dissolved the injunction previously granted, and from the order thereon the plaintiffs bring this appeal.

P. H. Carney and F. W. Monteith, for appellants, James Smeaton and others.

D. H. Sumner, for respondents, Leonard Martin and others.

CASSODAY, J.

We assume, for the purposes of this appeal, that the plaintiffs were entitled to an injunction, and that the same was improperly dissolved, unless the opening of the drain by order of the supervisors was justified by their proceedings under the statute. The learned counsel for the plaintiffs insist that the statutes under which the ditch was first constructed, in 1863, were invalid because they authorized the taking of private property for private use. Chapter 57, Rev. St. 1858, and chapter 54, Rev. St. There may be some doubt about the validity of those statutes. In addition to the authorities cited by counsel, we would refer to Consolidated C. C. v. The Central, 51 Cal. 269;Waddell's Appeal, 84 Pa. St. 90. But the validity of the drainage acts of North Carolina were sustained in Browne v. Keener, 74 N. C. 714, where it was held that “the public power (legislative power) extended to providing for every object which may be reasonably considered necessary for the public safety, health, good order, or prosperity, and which is not forbidden by some restriction in the state or federal constitution, or by some recognized principle of right and justice found in the common law.” To the same effect, In re Drainage Pequest River, 39 N. J. Law, 433; Hartwell v. Armstrong, 19 Barb. 166;Matter of Ryers, 72 N. Y. 8; Mills, Em. Dom. §§ 16, 359. But it is not necessary here to pass upon the question, and we therefore reserve it for future consideration.

It seems to be conceded that the road in question was a public highway, within the meaning of the statute. Being a public highway, it was under the care and supervision of the supervisors of the town. It was their duty, therefore, to give directions for repairing the same, and to cause all obstructions to be removed therefrom, and to require the overseers of highways for that district, from time to time and as often as they should deem necessary, to perform any of the duties required of them by law. Subdivisions 1 and 6, § 1223, Rev. St. The statutes made it the duty of the overseers of highways in that district to repair and keep the same in order, and to remove all obstructions therefrom; and to execute all lawful orders of the supervisors. Subdivisions 1 and 3, § 1232, Rev. St. So, whenever any highway became impassable by reason of any casual interruption from the washing away or injury of any part of said highway, it was the duty of the overseer to cause such highway to be put in passable repair as soon as practicable. Section 1233, Rev. St. It was, moreover, made lawful by the statute for any overseer of highways, or any person acting under his direction, to enter upon any lands, adjoining to or near the highway in his district, and construct such drains or ditches as might be necessary for the improvement or preservation of such highways; but such overseer or other person was thereby required to carefully avoid doing any unnecessary injury upon the same. Section 1236, Rev. St. And so the statute provided that...